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Revolving-Door Corporate Lawyer Further Softens Justice Department’s Enforcement of Corporate Crime

Oct. 15, 2018

Revolving-Door Corporate Lawyer Further Softens Justice Department’s Enforcement of Corporate Crime

Statement of Robert Weissman, President of Public Citizen

Note: On Friday, Oct. 12, Assistant Attorney General Brian Benczkowski gave a speech announcing a policy placing new limits on the use of independent monitors for corporate wrongdoers. The policy is expected to decrease the number of corporate violators that the U.S. Department of Justice (DOJ) requires to be supervised by a monitor.

A corporate lawyer who big business previously paid handsomely to defend corporate wrongdoers is weakening enforcement against such wrongdoers from the inside.

Assistant Attorney General Brian Benczkowski, a former Bush DOJ official, in 2009 joined the corporate criminal defense firm Kirkland & Ellis and worked for a litany of corporate criminals and violators including BP, HSBC, Valeant Pharmaceuticals and Volkswagen. He rejoined the DOJ earlier this year to oversee the agency’s criminal division.

Now Benczkowski has issued a memo instructing federal prosecutors to consider the “financial burden” to be imposed when requiring a corporate criminal to undergo supervision by an independent monitor. The memo places new limits on a practice – which Benczkoswki says is used in about a third of corporate enforcements – that already was too-often a weak substitute for stronger enforcement.

The memo states:

“In general, the Criminal Division should favor the imposition of a monitor only where there is a demonstrated need for, and clear benefit to be derived from, a monitorship relative to the projected costs and burdens. Where a corporation’s compliance program and controls are demonstrated to be effective and appropriately resourced at the time of resolution, a monitor will likely not be necessary.”

A poor substitute for actual enforcement of the law, monitors typically fail to live up to their modest assigned role. They commonly lack the authority and independence needed to prevent further corporate violations. Now Benczkowski aims to shrink even this fig leaf for inadequate enforcement against corporate wrongdoers.

To top it all off, if a corporate violator wants to complain about the monitor, Benczkowski emphasizes the DOJ is “here to listen.”

When he was appointed, we raised concerns about Benczkowski’s revolving-door affiliations. But even we did not anticipate that he would explicitly adopt the viewpoint of corporate criminal defendants in his DOJ post. But that’s exactly what he did in announcing the new policy.

No doubt a DOJ willing to bend over backwards to help the corporations it was supposed to be prosecuting would have been a dream come true for Benczkowski when he was a corporate lawyer. Now Assistant AG Benczkowski is on the inside, making corporate lawyers’ dreams come true.